Thanks for responding! I'll certainly go read your St. John's Law
Review paper. In the mean time, I hope you don't mind discussing these
issues here. I certainly find it enlightening.
"As the court said in its decision, Miller's action (carrying a
sawed-off shotgun across state lines) was not protected under the Second
Amendment because there was no evidence that his action 'has some
reasonable relationship to the preservation or efficiency of a well
regulated militia.'"
You seem to be referring to this paragraph:
"In the absence of any evidence tending to show that possession or
use of a 'shotgun having a barrel of less than eighteen inches in
length' at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to keep and bear such an
instrument. Certainly it is not within judicial notice that this weapon
is any part of the ordinary military equipment or that its use could
contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.)
154, 158."
Are you reading into the text of the paragraph something that is
absent (i.e., a reference to Jack Miller's specific actions, where the
Court mentions only the general question of whether possession or use of
a particular type of weapon has some reasonable relationship to the
preservation or efficiency of a well regulated militia)?
Did they really mean to write this?
"In the absence of any evidence tending to show that [the
defendant's] possession or use of [arms under these circumstances] has
some reasonable relationship to the preservation or efficiency of a well
regulated militia, we cannot say that the Second Amendment guarantees
the right [of this defendant] to keep and bear [arms for these
purposes]."
If they had written the paragraph's first sentence with the
bracketed words changed as in the above, would that have meant the same
as what they actually did write?
"In the absence of any evidence tending to show that possession or
use of a 'shotgun having a barrel of less than eighteen inches in
length' at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to keep and bear such an
instrument."
The actual words of the Court clearly state that the question being
considered is whether the Second Amendment applies to a particular type
of weapon (i.e., whether "the Second Amendment guarantees the right to
keep and bear such an instrument").
Are you reading out of the text of the paragraph something that is
present (i.e., the second sentence's clarification that what they are
looking for is evidence about whether "this weapon is any part of the
ordinary military equipment or that its use could contribute to the
common defense")?
Do you contend that the Court cited page 158 of Aymette for some
other reason than to indicate that they agree with the following from
the Government's argument?
"... While some courts have said that the right to bear arms
includes the right of the individual to have them for the protection of
his person and property as well as the right of the people to bear arms
collectively (People v. Brown, 53 Mich. 537; State v. Duke, 42 Tex.
455), the cases are unanimous in holding that the term "arms" as used in
constitutional provisions refers only to those weapons which are
ordinarily used for military or public defense purposes and does not
relate to those weapons which are commonly used by criminals. Thus in
Aymette v. State, supra, it was said (p. 158): ..."
I'd be interested in how one could explain that a paragraph is about
the specific actions of the defendant when it
a) begins by focusing on the question of whether "the Second
Amendment guarantees the right to keep and bear such an instrument,"
b) continues by clarifying that in order to answer the above
question, the Court needs to hear evidence for or against the
proposition "that this weapon is any part of the ordinary military
equipment or that its use could contribute to the common defense," and
c) ends by citing the page of Aymette that the government says
stands for the proposition that the right to bear arms includes the
right of the individual to have them for the protection of his person
and property as well as the right of the people to bear arms
collectively, but that the term "arms" as used in constitutional
provisions refers only to those weapons which are ordinarily used for
military or public defense purposes and does not relate to those weapons
which are commonly used by criminals.
